Crymes v. White & Johnson , 37 Ala. 549 ( 1861 )

R. W. WALKER, J.

1. The plaintiffs propounded interrogatories to the defendant, under the statute. -The defendant bad interposed the plea of payment; and the plaintiffs, with the .view of meeting this defense,"among other .questions, inquired of the defendant, with whom* and at what time, he had - settled the accounts sued on, how-much of the same he had paid in money, and how much was paid in individual debts due from Johnson, one of the plaintiffs,- to the defendant. The defendant, in answering, stated,' that lie had settled 'the accounts sued on with the plaintiff Johnson,; that he .had paid the same partly -in cash, and partly in medical accounts due-from Johnson to him; and’in reference to the-account of 1853, he adds: “.Defendant.made said .payments, and said credits were made, after said White had sold nut his-interest in the concern of White & Johnson, and while 'Johnson was the sole owner.of the goods, notes, books of account, &c.” On motion» of j-the plaintiffs,.thisparfcof the defendant’s answer was suppressed by the court. Giving to the sections of the Code (% 2330-6) authorizing the examination of parties.by interrogatories the same- construction-which was nut upon the old statute on that subject, (Clay’s Digest, 341, § 160,) we must bold, that the court erred in suppressing that-portion of the defendant’s answer above quoted. According to our- formen decisions, interrogatories- under ‘the statute are governed by the -same rules tliat -apply'to- bills.of discovery in chancery, so far as relates -to thenaature^of the discovery sought, and the effect of the answers as evidence when made. In Saltmarsh v. Bower, (22 Ala. 221,) this subject underwent a careful consideration; and it was there held, that, as in an answer to a bill of of discovery, nothing can be considered impertinent, whi ch-tends to disprove . the existence of the- cause of action or defense set up in the bill; so an answer to-interrogatories under the statute, whether it is purely responsive, or contains affirmative'irresponsive allegations in avoidance'-'of the' demand, cannot be made the subjeeb-matter of éxceptidn. — ¡Sée, also, Pritchett v. Munroe, 22 Ala. 501 ; Wilson v. Maria, 21 Ala. 350. In the present case, the plaintiffs sought to elicit from the defendant the fact, that all of the payments he relied on had been made to Johnson, and' that in part they were made by discharging the individual indebtedness of Johnson to the defendant. According to the principle settled in the cases cited supra-, the defendant was no't bound to confine himself to- a simple admission or denial of the facts thus sought to be elicited. If he admitted the facts to be as indicated by the interrogatories, he 'had the right to accompany that admission with’srtch an explanation of them as the justice of the case required-. He had the light to confess and avoid. His admission that he ha'd paid the accounts to- Johnson, in individual debts of the latter to him, would, if unexplained, have deprived the payment of alhvalue as a defense to this suit; and he ha'd the ’light to aecompanydiis admission- of that fact with the statement of such other* facts as showed that the payment operated a legal discharge- of the- demand.

2. The defendant introduced- evidence tending to show, that the plaintiff White had sold out his interest in the goods, notes,'-books <bf account, &c., of the firm, to his partner, Johnson ; and’ that, after this- sale, the defendant had paid-the accounts sued on to Johnson, by crediting the same on individual debts due from Johnson to'tbe defendant. It appears that, after the introduction of this evidence, the plaintiff White was offered--as a'witness under the statute; to prove the correctness of'the demand sued on, the requisite notice having been .'previously given. On bis examination, he w-as-allowed to- state, that the co-partnership of White- & Johnson had not been ‘dissolved; that he had-made mo sale to-Johnson; that Johnson had no authority to settle the-books by any individual debt of bis due the defendant; and that lie was- a'-co-partner with Johnson, and ¡interested in.-the goods sold in 1853 and 1854, and in the books. It was not'the design of ’section 2313 of the Code, udder whioh the plaintiff was introduced, to make tbe parties - general witnesses. — Waring v. Henry, 30 Ala. 724. All that the plaintiff'is competent to establish,, is the correctness of the demand. It is true, as was held! m, Jordan v. Owen, (27 Ala. 155,) that the plaintiff' a.annot:be permitted, under this section, so to* shape the fa,c,ts wh-iehi he proposes* to prove by his own oath., as to deprive the defendant of v the right to prove by his oath that the demand has been paid. In cases falling within this section, ‘ the correctness of the demand’ 'must be regarded as not proved by the plaintiff’s oath, unless he swears that it has nof'been pa^l. Hence, he must not only state facts which, if proved b-y other witnesses, vyould make osut a prima-facie case of indebtedness of the defendant to,him, but he must,go further, and swear to the fact,of non-pay-npent of the indebtedness. But where, as in this case, the defendant sets up, as a defense to, the action,, a payment not made to the plaintiff^:? and the validity of such payment as a defense depends upon an alleged previous transfer-of the claim to the person to whom the payment was made, it is not allowable for the plaintiff to testify in rebuttal of th,$ evidence of transfer offered by the defendant. If tbe plainw. till was permitted to contradict the evidence offered by th% defendant, of an independent fact of this, sort, it would be - difficult to fix any limit to his right to testify in the case-. It is;.obvious, that the testimony of the plaintiff — that the partnership was not dissolved, that he made no sale to Johnson, and that the latter had no authority to settle the booksjity any individual debt of his due the defendant — . was not evidence necessary or proper to establish the correctness, of the demand, in.the first instance, and was irrelevant, except so far.- as it went to disprove thc-alleged transfer to Johnson, or the validity of the defendant’s payment to him. In any aspect, itvwas strictly rebutting proof; and:j we hold, that the eourtierred in permitting the plaintiff to., testify to the facts above mentioned. — See, further, West v. Brunn, 35 Ala. 263 ; Flash, Hartwell & Co. v. Ferri, 34 Ala. 186 ; Bennett v. Armistead, 3 Ala. 507 ; Kirkman v. Eaton, 35 Ala. 272.

Judgment -peversedj, and cause remanded-.